Patent nonsense: the case for unfettered development

The Computer Implemented Inventions Directive (CIID) has caused considerable controversy ever since it started passing through the corridors of the European Union in 2002. But understanding the directive, the legislative processes involved and the consequences for the software industry is a mind boggling task.

Let's be clear about what we mean by software patents. The argument revolves around the question of whether or not we should be able to patent physical inventions that use software -- such as a car braking system -- and whether or not we should be able to patent software itself. Most anti-patent groups accept that the former should be patentable, whilst the latter shouldn't. For small and medium enterprises (SMEs), who make up the majority of the industry, patents on pure software would be a disaster. But for some big businesses they are a lucrative prize.

Consider the implications for a moment. Software ideas as trivial as converting Windows 95 filenames to Windows NT filenames are being patented in the EU already. If the CIID passes through and legalises these software patents, every business would need to hire lawyers to track patents to avoid infringement. But this would be a near-impossible task given the number and trivial nature of so many patents -- imagine trying to write software without a progress bar, menu tabs or certain kinds of multitasking! Avoiding this will represent an unnecessary distraction from the business of writing software, which is already lucratively protected by copyright law.

If legalised, it will be practically impossible for developers to avoid software patent infringement. The alternative is to build a defensive portfolio of software patents, so that if a big business accuses you of infringement you can negotiate your way out of expensive legal procedures with cross-licensing deals. These costs, however, would inevitably be passed onto the consumer.

Companies like Acacia Research who "develop, acquire and license" software patents will prosper without ever writing a line of code. They could sue for infringement on software they never invented, and would be immune from countersuits.

Patents, or state-granted monopolies, were originally introduced to protect physical inventions; they are not suitable for ideas, mathematical algorithms or code. Big business and patent portfolio companies, would effectively be able to stifle competition and innovation in the SME sector. According to research by the Green-EFA group, a parliamentary group made up of the Greens and the European Free Alliance, 43 percent of all the software patents currently registered are owned by only 50 companies, most of which are American or Asian.